5.1 Introduction

A design right offers the possibility to protect the appearance, also called design or shaping, of a product. A design right application can be granted if it is new and has an individual character at the time of filing for registration. This individual character of a product can be appropriated by the filing of a design right.

A design right has to be filed and applied for like many other IP rights. At the BOIP you can file a Benelux design right for the Benelux countries. At the EUIPO you can apply for an EU community design right which is valid in all countries of the EU. Next a global design right can be applied for at the WIPO.

A granted design is valid for five years which can be renewed for another five years till a maximum of 25 years on the condition that fees are paid. A design enables the owner to act against third parties who sell a product showing the same individual character of your design.

5.2 Design law

The rules for Benelux designs are part of the Benelux Convention on Intellectual Property rights (BCIP). A number of relevant articles will be elaborated further and can be found in Parts of the Benelux Convention on Intellectual Property (designs).

The rules for EU community designs can be found in the Regulation on Community designs (CDR). A number of relevant articles will be elaborated further and can be found in Parts of the Regulation on Community designs.

5.3 What is a design?

With designs we refer to the appearance of an object, for example a new set of headphones, a watch, a bag or a stroller like the Bugaboo. Also two dimensional products named also ‘drawings’ can be protected as design. For example, think of the pattern on wallpaper, fabric, tiles or crockery.

According to Article 3.1 part 3 BCIP or Article 3 CDR the appearance of a product is derived by certain features such as lines, circumference, colors, shape, texture, decoration of the materials of the product.

5.4 Requirements for design right protection

To claim your design right for a certain product you have to register the design. A design has to be new when it is filed. According to Article 3.3 BCIP or Article 5 CDR a design can be considered to be new if no identical design is avalaible to the public on the date on which you file the application. Once a design has been published on for example a website, commercial material or shown at a trade fair the design has become publically known and hence not new.

Next, a design must have its individual character. According to Article 3.3 BCIP or Article 6 CDR the individual character of the new design means that it will give a different impression from the general impression made on users by designs which have been made avalaible to the public before the date of application. For such a comparison of impressions the informed user is used a legal basis.

A design right cannot be of use if the characteristics or external features of the design are determined by technical functions. In such conditions patents are the kind of appropriate Intellectual Property rights to apply for.

5.5 Design right application procedure

A design right is obtained by registration of a design application at, for instance, BOIP, EUIPO or WIPO. These organisations will not examine whether a design is new and has a individual character. However some formal requirements will be taken into consideration (Article 3.9 BCIP or Article 35 CDR). A picture of the appearance of the design must be sufficiently clear and fees must be paid.

If the design application fullfils the formal requirements the design will be registered into the register of designs. This register is freely accessible for everybody and can be found at the websites of BOIP, EUIPO or DesignView. It is recommendable to browse the design register and monitor what designs are already available in the market place through literature and internet searches prior to the filing of your design and determine whether your design is new and has individual character.

5.5.1 Design rights in the Bugaboo case

In the design register several data can be found, for example the owner of the design right, the application date, validity and appearance of the design. In Copies from the EUIPO design register you will find some EU community designs for the Bugaboo stroller. Figure 13 shows an example of a Bugaboo design.

5.6 Design right enforcement

The owner of the design, also called design holder has to monitor the market to observe if anybody is using a design that looks too much like the appearance of his design right. If such a situation occurs the design holder must act to stop the sales of products infringing his design rights. A design holder can also choose not to do anything.